Skip to main content

tv   Washington This Week  CSPAN  July 7, 2012 2:00pm-3:57pm EDT

2:00 pm
act. think about this. this bill says that instead of bureaucrats and regulators being able to have their way with us and trying to get congress to muster the will to stand up to muster the will to stand up to them, they would simply recommend to congress and congress would vote upper down. these regulations would only take effect of our elected representatives in congress voted to approve them. does that make sense? [applause] this idea did not come from an expert. it did not come from a washington think tank or a university or any of the high- minded elites. it came from a tea party activist in northern kentucky, a man named lloyd rodgers, a
2:01 pm
wounded navy veteran who worked for about 30 years for cincinnati bell and late in life got involved in politics, a self-taught. he started reading the constitution and taking glasses in public speaking, and one day he handed his congressman a piece of paper with article one section one of the constitution and said congressman, how is it the epa can double or triple my water bill with this down water management consent degree -- which in northern kentucky cost $1 billion -- should there not be a vote on this? i elected you. should there not be a vote before a $1 billion in cost can be imposed on us? i know some of you may not have read all 57 points in mitt romney's economic plan, of but the act is in their -- plan,
2:02 pm
but the act is in there and he has promised to sign it as president. unfortunately, when congress was actually doing stuff, when policy and we were in charge, they were doing the wrong thing, and they were vastly expanding the power of regulators and bureaucrats over our lives. the two pieces of legislation it passed are some of the worst examples in history of passing brought this legislation that leaves all the real power of the bureaucrats to figure out and take it over. dodd-frank calls for over 500 lawmakers. the thing is over 1000 pages long but it is less a lot than a grant of authority to bureaucrats to write 500 separate laws. all of these bureaucracies are going wild now, writing all these rules, and they're only
2:03 pm
incentive is not to get in trouble as regulators, not to allow anything to go wrong. if they stop you from taking a risk, if they stop you from making a loan, there is no risk. the only thing is it a loan happens and it does not go well. that is one of the reasons why the housing recovery has been so terrible. every lender has a federal regulator sooner rather shoulder saying don't you dare unless you're sure this loan will never go bad. by the way, the woman obama put in charge of implementing the bill, he did his usual and run around congress with elizabeth warren, most famous now by running as a fake indian in massachusetts -- that is an entertaining race of their. chris dodd said she could not run because she is too radical.
2:04 pm
by the way, how interesting is it for chris dodd and barney frank to be put in front -- put in charge of the financial system? barney frank said fannie mae was fine. and he is in charge of fixing the financial system. this is how washington works. it is kind of astonishing. it is like let's find the worst culprits and then put them in charge of fixing the problem. chris dodd now is the top lobbyist for the motion picture association of america. he was the one trying to destroy the internet in the name of hollywood recently. this bill is a vast granting of authority. he put elizabeth warren in charge because he could not get approved by the senate. she got all the structure in place. then he put someone else in
2:05 pm
charge. richard ward 3. he put him in charge by declaring -- richard cordray. he put him in charge by declaring the congress in recess. i have got to install and so the the so-called consumer financial protection bureau, the worst designed bureaucracy ed, can get on with regulating just about any financial transaction anywhere in the economy. and just to make sure they have the least amount of accountability possible, in the dodd-frank law they said it is not subject to oversight from congress and appropriations. instead, it is funded directly out of the federal reserve. print their own money. you have as much money is in need. you never have to come to congress for any funding.
2:06 pm
by the way, the same day he declared the senate in recess when they believe themselves not to be, he put to jr. radicals in to make sure they could continue with this radical unionizing, including one of them who came directly from being counsel for the international union of engineers, pretty much the most corrupt union out there, pretty much the mom. he is now on the national labor board writing more pro-union rules. which brings us to the worst of everything that has happened under this president, because the rest is minor compared to this, the president's health care law. i think in our pain and anger at what the supreme court did and who john roberts revealed
2:07 pm
himself to be, it is easy to lose sight of all the reasons we hated this law in the first place and the american people rejected it. the hundreds of new agencies that stand between the american people and their doctors and decide who lives and who dies. the costs that make health care more expensive and not less. and what it does to medicare, which i think is absolutely criminal. i would suggest that as a conservative, we should not hesitate to criticize what this bill does to medicare. people get anxious and say i'm for cutting spending. this has cuts in spending. i should be for this. you cannot fix a program by refusing to pay hospitals and doctors, and that is what obamacare does. it says we are not going to pay a reasonable rate of reimbursement.
2:08 pm
>> that means they will not get access to care. it is not the fault of seniors that that happened. medicare is in a disastrous financial condition. that is true. we all know that, but you have to fix it with fundamental reforms like the rise and budget that empower individuals to control market dollars, bring. competition in, allowing people to control their own health care, and we do not say "taw" for all of the money that you have been putting in for these years. we should not back down from that message. [applause] we should also remember the president and the health care law was the original example of everything he has done to abuse the process. this bill was not a finished piece of legislation.
2:09 pm
this was a discussion draft. it amends itself all over the place. it has ambiguities. it is a joke that it is in the american code, and that happened because of the scott brown election, because the people of massachusetts, one of the most liberal states in the country, rejected the law, and democrats in the state and the house -- in the senate and house said we had the previous law that was passed last christian, -- christian -- christmas, it was finished, but we cannot do it because of the people of massachusetts, so let's go all around them, make them irrelevant, and take a draft and insert it into the u.s. code as it is. that, on top of the other reasons is why this needs to be repealed. it has no business being in the u.s. code. it is not even a finished law.
2:10 pm
[applause] that has enormous practical consequences for what i was talking about earlier because when you have something that contradicts itself and has ambiguities, contradictions and all of these glitches, you have the bureaucrats taking over. hhs, the irs, and all of the rest of them, they say even though it says this, it meant something else entirely, and if you do not comply with that, we will find some other way to review -- ruin your life. secretary kathleen sebelius, before she was governor of kansas, was executive director of the kansas trial lawyers association, so obama put her in charge of tort reform. they wrote a letter to the insurance company saying even though the law does not say you must cover pre-existing
2:11 pm
conditions needed for children, you are required to do it. you know what we meant, so you had better do it or else. the worst example is the irs exchange role. i know that colorado pass your own obama health-care exchange flawed budget law. i think that was a huge mistake. i would urge you to repeal it. [applause] by the way, if we win the federal fight, and you do not repeal the, you will still have it in colorado. think about that. the irs says in the health care law it says that the exchange subsidies, the new obama-care entitlements, the exchange subsidies, and the $3,000 per- employee penalty applies in states that adopted state exchanges. that does not say anywhere that
2:12 pm
when the federal government runs the exchange, the counties are applicable, but the irs says they are. they just made it up. there will be a vote soon in the house and the senate. there is a procedure we can use. there will be a vote on overturning the rule. i think this will be another great mark hurd to put down to find out where the senate democrats stand. do they believe the irs of all people should be able to rewrite laws and tax whoever they want? i think that would be a frightening precedent. that is able to watch and put pressure on. i have five minutes. a couple more things -- the health care law can be defeated very simply. we need a majority in the senate and we need the presidency. it is that simple. for those that say we need 60, that is wrong.
2:13 pm
95% can be repealed with budget votes, it can be 51% and the tiebreaker, vice president. the senate race looks close. it hangs in the balance. do not take that for granted. we have to be active. we have to educate people, even if they do not have a republican candidate they do not like, i can assure you they will want to repeal obama-care, and that is enough reason. will be that close. -- it will be that close. the message of the supreme court this week, which was deeply painful to me and many of you, and i was out front, and i was the idiot who saw the cnn twitter and told everyone we won, and everyone went wild then i have to tell everybody we lost the -- lost.
2:14 pm
the takeaway that is tragic is there is no area safe from politics. we do not and meaningful constitutional protection for individual freedom or limitation on the power of government. that is frightening and tragic. if everything is pockets and politicians wheeled on limited power, unchecked by the constitution, then the solution is to work even harder in politics and make sure the people who win and have unlimited power are people who will choose not to use it or to restore the checks that we have lost, and that is why it is critical that we work harder to get more engaged and make sure that this election cycle is one that we win because this inflection point we are at where we cannot count on an external check of the democratic process makes it more critical than ever, unfortunately, there are
2:15 pm
more of lost them there are of them. if we work hard, we will win. i urge you to do everything we possibly can to win these races, to be in a position to stand up for this administration if god forbid it is reelected, or much better, we can be in a position to control the white house and on to these abuses of executive power and restore the balance to way it to the way it is supposed to be. i think that as possible and critical, and we need to make all of obama's abuses of power issues. make every senate democrat who voted not to stand up to the epa and the nlrb, boating to let the sec regulate the internet, let the irs make up its own taxes, let them explain on the campaign trail why anyone would
2:16 pm
reelect anyone to be a legislator who is not up to the job of legislating, who just wants to let the president do what he wants to do. i think that is impossible to explain, so if we do that whatever happens in the presidential, we can finally have legislators take responsibility for the job they're supposed to do, not just letting bureaucrats and regulators have all the power. this is a frightening time. the challenges are great. i believe we can rise to them, and in this lies an enormous opportunity to engage more people and bring them into our moment. i take heart in gatherings like this one and the amazing growth john was telling me they you have had over the past couple of years, and i know with your help we will win this fight and take back this country. thank you very much. [applause] >> one of my favorite drugs to talk about is in maybe half of
2:17 pm
pigs, half of taos, and a lot of turkeys. this drug is not withdrawn when they walk on to the killing floor, and that means when the animal is killed and the need is sold, the drug is in there. >> this weekend, martha rosenberg the behind-the-scenes of the food and drug industries, finding regulatory lapses. "born with a junk food deficiency" sunday night at 9:00 p.m. on c-span to. >> now, reporters from some of the nation's biggest newspapers did a behind-the-scenes look at the recently completed a supreme court term, discussing the historic health-care decision speculate on how john roberts joined. the d.c. bar session hosted this
2:18 pm
panel. the new supreme court term begins monday, october 1. [captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute] >> i am the legal director of the aclu and an amateur court watcher. next to me is adam liptak. in 1992, he joined the new york times' corporate legal department, advising and lit skating on defamation, privacy, news gathering and similar issues. a decade later, he became a reporter covering legal issues, including the confirmation hearings for justice roberts and alito. and an in-depth series on the
2:19 pm
contributions or political campaigns on the chicago hire supreme court. his work has also appeared in "the new yorker," "vanity fair," "rolling stone," and many others. next to him is david savage who is there longest tenured supreme court reporter. he has been with the "the los angeles times" since 1981. he has covered the courts since 1986. in recent years, he has been "the chicago tribune" supreme court reporter. he writes a monthly supreme court called for the american bar association draw and offers jarrett -- offers little commentary in recently authored -- offers legal commentary. next to dave it is of barnes --
2:20 pm
is bob barnes for "the washington post," originally covering maryland politics. it was the national political editor for the first term of the clinton administration. he returned to reporting in 2005 and began covering the court in 2006. next to him is jesse holland with "the associated press." he began covering the court for the peak in april 2007. he has been with them since 1995, previously covering legal affairs and judicial nominations at the white house and on capitol hill. before that, he covered state capitals in new york, south carolina and other states.
2:21 pm
his book is "black man built the capital, discovering african-american history in and around washington, d.c." of weston 1997. today is his wedding anniversary. congratulations. at the far end, having arrived just in the nick of time is joan biskupic. she has covered the courts since 1989. previously at "usa today" and before that covering the supreme court for " the washington post." and before that, as a legal affairs writer for " congressional quarterly." a long way, she earned her law degree at george the town -- georgetown law school. she is the author of two
2:22 pm
biographies, sandra day o'connor, the first woman on the supreme court became its first influential justice and the life and constitution of supreme court justice anthony scalia. i will make sure she tells us where she is, if anywhere, on her recent object. altogether, as i counted, we have 64 years of cumulative supreme court reporting on our panel. and we should deal to get some interesting observations. before we begin, there are a couple of other preliminary reports. this panel has been sponsored by the d.c. bar section of the courts and the administration of justice which concentrates on matters pertaining to court, court rules, the relationship between the bench and the bar, and the relationship to the
2:23 pm
profession, including ethics and standards. it also focuses on including access to others. we're pleased to be co- sponsored by 11 other sections of the d.c. bar. those of you who are members of the d.c. bar or will be in a year or two, i encourage you. you have to join the bar. i encourage you to join at least one section or more. there very interesting and have useful work. it is interesting to get involved in legal work in this community. my involvement in section for many years ago gained me access to moderate this panel. also, we will save some time, 15 minutes or so, for questions at the end. for those of you like to ask questions, you may be concentrating on what would like to ask the panel. we're being covered the second
2:24 pm
in by c-span. if you do what the back of your head or your voice on national tv, don't ask a question. [laughter] finally, there should be evaluation forms sitting on your table. if there are, please fill them out and hand them out at the desk when you leave. if there nitre tables -- i don't see them -- then i guess there will be a stack. if you pick one up on your way out, maybe someone will come and ask to beat them burned program. the borrower is appreciating these evaluations. tony morrow who was listed on the advertisement to this panel, just in case anybody can just because they wanted to see tony, was without power and had something urgently to be done at this house and senate is
2:25 pm
regrets and apologies that he could not make it this year. but let's focus on what is on everybody's mind. who is talking to john crawford over at cbs and what is the inside story on the health care decision? i saw on this morning's papers that they had articles. would anybody like to start out talking about this rapidly developing inside story? >> a think we have established that i am the junior member on this panel. i am sure that some of my senior colleagues have much better sources than i do and i would like to hear their thoughts. >> let me second that motion. [laughter]
2:26 pm
>> whoever the sources for that story was quite unhappy with the outcome, right? it is very rare for there to be leaks about what happened inside the supreme court, particularly shortly after such a big decision. but there were padilla people on the right -- but there were a lot of people on the right who were shocked and angry about what happened. there were quite upset with john roberts. dan crawford wrote a book about the court a couple of years ago and there are a lot of sources about the conservative members of the supreme court. and we know we're not talking about john roberts. [laughter] the phrase that she used was that resource had "specific knowledge of the court deliberation." does that extend as far as the
2:27 pm
spouse of a law clerk, for example? >> the spouse of a law clerk? >> yes. i am writing the majority opinion and you get to do this piece of the draft. you get to do that piece of the draft. so law clerks get told. >> i don't think that is a good guess. joan? >> thank you, david. [laughter] let me define the word deliberations of the people understand the process behind the scene. some people may have been lucky enough to go through the documents that show that there is a conversation that is constantly ongoing among the justices. they usually do it by letter, by memo, this constant back- and-forth about not just the bottom line vote, but it is part
2:28 pm
one to the whole thing, the rationale. what i presume happened to get the conservatives so happy is that the chief justice john roberts probably left his options open as he presided over the conference about how he would go on the taxing power. we know exactly how he felt about the congress clause. he was very vigorous on rejecting that power. and it is hard to imagine that an actual vote got switched because many of us felt that, even from oral arguments, that john roberts was laying some groundwork to uphold it and even laying some groundwork on the taxing power. he might have suggested to conservatives that he was open to that and was ready to reject it. i cannot even imagine how many drafts this might have gone through. it can even it -- it can easily go through two dozen drafts. probably by mid-may, the chief
2:29 pm
circulated a draft that showed where he was likely headed and it was not with the four conservatives on a rationale that would uphold it. we saw around that time a flurry of activity among conservatives in the press about how chief justice john roberts might be pressured in some way. was he being pressured by president obama? was he being pressured in some way by pat leahy, which something i found completely implausible? the ideas that the chief justice of the united states was somehow pressured by outsiders, i think that just cannot hold up. but clearly, as david said, conservatives were unhappy with what he was doing it they saw it as a switch and vote. i think it is unlikely that he said from the start i would vote to strike this down and then, all of sudden mid stream,
2:30 pm
decided no. the opinion have all the makings of a june meeting. there were signs within it that there were some shifting in the rationale. but his opinion for the court was actually quite clear. he knew want -- he knew what he wanted to say. >> you haven't read the opinion, you will be interested in the way that it is structured. most of what is the majority opinion is roberts pretty much speaking for himself. the descent from the conservatives reads very much like their own opinion that addresses justice ginsberg in
2:31 pm
little bit and does not address justice roberts as writing at all. it goes through all of the issues that were in front of the court, including several ability, which really shouldn't have come into play since the mandate was upheld under the taxing power. so it is a very unusual opinion, i think. certainly from what justice ginsberg wrote, you would think that liberals on the court had lost rather than won until the very end. >> you can see the depth of the anchor going on upstairs in the supreme court. they are usually good about not letting any of us know what is going on up there. but now we hear leaks about the liberation. that is very rare. this is usually the kind of information you don't find out until 20 years later.
2:32 pm
but we're finding out a week after the decision. so there's really some anger in that building. >> i am curious about what you all think is meant by the carefully chosen phrase "specific knowledge of the deliberation." >> would you assume that? -- why do you assume that? >> if she meant to tell us it was a justice, the direct knowledge, she leaves ambiguity. >> lots and lots of people knew this, which is a way to protect your sources. >> one thing that is really dangerous is to try to parse the exact meaning of the reporters were without asking a reporter. all we know is the words she put on the page.
2:33 pm
>> you have to be specific and. >> is there were widespread decision that she heard from law clerks? >> it would not be right to speculate. >> are you speaking for the panel? >> is speaking for me. it seems like every commentator assumes this was a political decision in one way or another. the liberals are happy, and the conservatives are now upset that it was a political decision. does anybody think it is possible that he called it as he
2:34 pm
saw it? >> what is the definition of a political decision. >> go ahead. >> i am asking you. >> made for reasons outside of the law, in other words a decision made to save the prestige of the court, to save the nation from political trauma, all kinds of reasons, political that presumably a law professor with no care about what happens elsewhere. >> i do not think it was a political decision. i think roberts had the view and said it before that the court had the duty to uphold the law of congress if there was a constitutional basis to do so. he did not think it could be
2:35 pm
upheld under the commerce clause. he did not think the expansion could be upheld as a mandate requirement, but i think he did think it could be upheld as a tax, that that was a reasonable way to decide the case, and it avoided the court striking down a major act of congress. they have not struck down a major regulatory law since 1936, so i would think he would want to avoid that, but that does not strike me as political. that strikes me as what he thinks he thinks should do, given the law the benefit of the doubt. >> this was no mere regulatory act. this was a major plank of the democratic president, the signature achievement of his domestic agenda. there was already a high hurdle.
2:36 pm
it is funny. you raise the political question, as we sit here in front of lawyers by and law students debt -- that say you try to uphold something if you can. i think it served a couple of different differences, but one was calling it as he felt a lot dictated. >> i give him the benefit of that doubt, too. it is striking how little of that i have seen in the general reaction. i wonder whether you guys who cover the supreme court think it is part of your job to save maybe he did call it as he saw it. >> i think that is when you cover the decision, and you get
2:37 pm
the reasons the court said it did what it did. that is what you do in those sort of things. the reaction that it was political, as i talked about today, it was all from the left that this was going to be a political decision, and a partisan one that strikes down the law, and now it is all coming from the right. i think this comes from the fact that it is a divisive piece of legislation. the public is very split. we have a poll out today. it is almost exactly even the number of people who think the court did the right thing, and the number of people who think the court did the wrong thing. i think that shows that it is something that is pushed and probably should be pushed into the political realm, thus if people want to overturn it, they know who to vote for.
2:38 pm
>> 1 point about polls, my favorite home number is one i saw yesterday that 41% of americans do not know that there has been a healthcare decision. [laughter] then, to follow upon bob and david koch point, the wire services and -- david's point, the wire services and the newspapers did a great job explaining the substantive nature of these decisions, and i think it worked out great. i think it walked through the points you were making, and even justice roberts citing les that it is subjected to multiple, it is your duty to go with the one that works.
2:39 pm
>> if you look -- if you look at this decision, and when not following it closely, and you could look at the justices, based on what we thought, you might say eight of the nine voted as you would have guessed. the four democratic-appointed justices voted to uphold a law passed by a democratic congress and signed by a democratic president, opposed entirely by republicans. the four other republican justices voted to strike down that lot entirely, all 900 pages of a law passed by a democratic congress, signed by a democratic president. only zero when the justice voted in a way you might not have guessed, looking at his background. a republican appointee, a relatively conservative justice, voted to uphold the law. it seems to me the last person you ought to say made a decision that is political, it ought to be john roberts.
2:40 pm
>> there is another piece about this law. my guess is very few people around the country get this legal matter. i wonder if any of you have felt it was part of your reporting job to try to explain it, or have tried to explain it. that is, when massachusetts passed a similar -- a similar law, there was no constitutional run through. there was no question about the power to do that. and yet here was this major question about whether the federal government could do that. everyone at this table knows the difference. chief justice roberts went to some pains in his opinion to explain that difference. of course, you guys had 185 pages worth of opinions to try to put into a report. is that something any of you have written about, in the course of covering this issue? is that something you think is
2:41 pm
important to try to convey? or is it something people do not think about, do not care about, do not need to know? >> i did a piece about justice kennedy's conception of liberty as something baked into the federal structure, which is different than the due process that might be the basis to attack a state mandate. i do think that distinction came up. maybe not enough. and i am not sure most people could articulate the difference between what the limits on a state-enacted mandate and a federally-enacted mandate might be. >> every time i wrote about it, i got an e-mail from somebody making exactly that point. "i have to pay car insurance in california. why is that ok?" it is not satisfying to say the
2:42 pm
federal government has different rights than the states. people should ask whether romneycare is enforced with a tax. >> to make a point about how much we explain are not. often, we are limited by what we believe is the public appetite for the case. in this situation, i think almost all of us wrote heavy stories about the commerce clause, about the taxing power, about the legal issues undergirding the popular political question, both because we had a long run-up, and because people had an appetite for all-things health care. we had more incentive this time around than other times we have tackled federalist issues. the 90's were the big federalism era at the supreme court. readers greeted it unenthusiastically because it was difficult to explain. this time, everybody was so interested in the topic it was easier to explain.
2:43 pm
>> we were publishing big pictures of roscoe gilbert. [laughter] >> we have all talked about this aspect. there has been more interest in this case than anything i have ever covered at the supreme court. i have been asked about it by literally everyone i meet who knows what i do. the appetite, believe me, has been there for stories both from the public and, more importantly, from editors. >> if his paper is to be believed, he called the case exactly right. >> how much preparation did you guys have to do for this case? i assume you read at least the major briefs. do you feel you need to read all the briefs? did you educate yourself on how the affordable care act worked, all 900 pages?
2:44 pm
how deeply did you did in in anticipation of this decision? >> i still do not know exactly how it works. but i reviewed the legal issues. that is what i felt like we needed to know. we have lots of people at the paper who do know a lot about how it works, or will work, or will not work. this was another of those huge, huge things. i thought, in a way, it almost became unmanageable. there were some of the briefs. there was so much information. i think you depend on some people to point you to the ones they think are the most important, the ones they think will shape their argument on both sides. there were a million briefings on this by interest groups, and conservative groups, and liberal groups. after a while, i think we all
2:45 pm
had a pretty good idea what the issues were. >> i do not think our practice is terribly different from the justices. i read the briefs from advocates i trust. i read the briefs from interest groups who have something interesting to say. i do not read every single amicus brief. nor do the justices. >> all of us had to figure out how best to be prepared. by mid-june, we knew it could come every day. most of us put our money on the last day. the trick was being ready for whatever they are going to do. do you go back through some of the briefs? do you go back to the oral arguments? how do you get ready? many of us had to pre-right different versions of what happened. you get selective. i went back to the oral arguments and the government brief, to look at their three arguments on the commerce clause, necessary and proper, and the taxing.
2:46 pm
probably all of our desks look the same. we were surrounded by paper. it is a matter of what will be most useful to you, when the time comes, to distill the document we get. >> i thought this was interesting for many reasons. going into the argument, i think most of us thought the court was likely to uphold the law because of the long precedent on the commerce clause. then we sat to the three days of arguments, and i came out of it thinking they were going to strike down the entire law. not only did they not by the commerce clause argument, it looked like their view was we have to strike down the entire lot if the mandate goes. then they went to the medicaid argument, and they seemed to buy the idea that the medicaid expansion was unconstitutional. i went through a time of thinking that john roberts is not going to want to go along
2:47 pm
with striking down the entire law. i remember about a month ago, i said to my daughter that i thought they were going to strike down the mandate and of all the tax penalty. she said, how would you do that? i will give you my homemade example. suppose there was a law that required american families to have children or pay a tax penalty. the first part of that, you would say, has to be unconstitutional. the government could not require you to have children. but the second part, if you do not have children, you pay higher taxes, that is sort of the way our system works. she said, put that in the paper. i said, i cannot. it is too simple for legal work. but i think that is how it will come out. >> too bad you did not put it in the paper. >> i did run a story that ran the weekend before the decision that said i thought they were going to split the tax cut.
2:48 pm
>> what was the morning like, last thursday? how did the day go? >> i think there were dramatically different. some of us were in the court room, which turned out to be a blessing, because you could actually hear, did just, understand, have the chief justice explain what he considered to be the holdings. that is old school. we were up there for the better part of an hour, while the rest of the world was rushing down the stairs, making mistakes. david and jesse were downstairs. i would love to hear what that was like. i have not heard it yet. >> oh any of the things we did for monday is we had set up a system where we had certain code words that we would use. literally, we are standing no less than 10 feet away from where we are getting an opinion, but we wanted to make sure we could get it out as fast as possible.
2:49 pm
we stationed one person inside the press room. i actually had an open line to our bureau, waiting for the code words from mark sherman about what the decision was going to be. >> can you reveal the code words? [laughter] >> summon and falconer. [laughter] >> it is really simple. upfold all, uphold mandate, throw down all, throw down mandate, premature. once mark got to the correct part of the decision and saw it, he relayed the code words to me. i repeated it back to him. i had in mind the football game where the referee misses what the guy says who calls it in the air. i wanted to be sure i completely understood what mark was saying, that we were using the right code words. literally, all of this happened in a minute. we filed.
2:50 pm
we split the decision. he read the majority opinion. i read the dissent. we ran from there. >> some members of the press can sit in the courtroom, in the press gallery, which is on the left-hand side, facing the justices. usually, they get up and leave as soon as the decisions are being handed down, even though the court may go on to other business, like the supreme court bar, which can take an eternity. but there is also a press room one floor below, which has a speaker. you can hear the audio. as the decisions are handed out, the public information office will pass out copies of the decision. so if you are sitting down there, you can be on your laptop, transmitting. >> that is not quite true. they would not allow you to take any electronic devices into the
2:51 pm
rooms. we had to have two people, because we could not have electronic devices in the room. >> is that the usual practice? >> phenomenal usual practice, but i do not know that people care so much. >> this is the first really big decision in the web area. it used to be that h-p had to do this. i remember in the stories i started, they can't of the opinion. alan ball he wins on a 5-4 vote. -- alan balki wins on a 5-4 vote. everybody knows the decision for the past -- for the last paragraphs, that the university can use race as a plus factor. the reporters that had to jump said the university of california lost, a big defeat
2:52 pm
for affirmative action. turned out to be not true. all of us wanted to rush on this, but i wanted to look at the syllabus and go through each point and make sure i had counted the votes right. i thought there was a good chance on the tax power that they might do it, but i stayed downstairs. it would be nice to be up there for history, but our website wanted to post something quickly. i wrote a couple of pieces in advance. one of them was, upfolded on the tax power. it took me a minute to go through. i called the desk and said, opposed the story on the tax power. but it was a lot of fun. there is always a danger. i did not watch the tv coverage. i take it some of you might have. there is always a danger of making a fool of yourself by being the first up with the wrong story. >> that was sort of the beauty
2:53 pm
of being in the courtroom. it was not unlike balki. as the chief announces his opinion, hopefully it takes only 20 minutes. if you were about to-off with the first decision, you would rush off with "do not justify the individual mandate." he spends that out. then he runs on to the taxing level. it helps to digest all the different pieces. the thing that was equally helpful was the medicaid part. he said the medicaid expansion was struck down. unlike david, i never thought they would go that far. i thought that would be so dangerous to the spending power of congress, and they would not do it. but then he says, there is a
2:54 pm
remedy. it is almost like you in some ways were being fed a story, and you could digest it in a way that was easier than what they had to do in the press room. >> the solicitor general must have aged 10 years. he was sitting directly in front of the justices, as close as this. roberts took that guy on a roller-coaster ride. down on medicaid. wait, wait. i felt bad watching him. >> that was the end of a three- month roller-coaster for him. >> you have written about this, i think. unless i am mixing you up with somebody else.
2:55 pm
>> the ultimate vindication? >> that is another fascinating story. i said he might have lost on style points, but won his case. particularly the blockers on the left were merciless, taking the metaphor that he caught in his throat and was unable to speak about as a sign he had flubbed the case. anybody who follows the court knows they do not decide cases based on that. they also care a lot about the briefs. he insisted on keeping the tax argument in the case. made a very good presentation about saying, if you look at how the law works, it is not a mandate. you do not get prosecuted are taken to jail. it is a tax law. it works like a tax. therefore, it can be upheld as a
2:56 pm
tax. there was not a powerful counter to that. it is an interesting story. everybody wrote about how he had lost the case at the oral argument. vary greatly overstated. it ends up that his argument turns out to be the winner. >> as you all know, scotusblog is now doing a live blog on decision days. on thursday, they had 866,000 people tune in at one point. more than 3 million hits to the web site by about 1:00 that afternoon. does that fact change the job that you do at all, the fact that people have, in effect, direct access to the news as it
2:57 pm
is breaking, easy access to the opinions of minutes after they come down? or is that such a different audience from yours that it does not matter? >> i will add that it is what we do anyway. in addition to writing stories on opinions, but also right to the a p twitter site -- i also write to the a.p. twitter site. we have a very general office. we publish to everybody. they are doing what we started doing years ago. we just do it in a different way. >> where were you? i guess you were not in the press room, with no electronics. >> i was on where our offices are in the press room, reading the dissent, tweaking -- tweeting and writing. >> it has changed life
2:58 pm
completely four newspaper reporters. people want things very quickly. they want to be able to come to the web site and find out what happened. they want alerts. they want twitter feeds. it is a huge difference. week, a little bit -- we have our-long meetings about what color possibilities could be, that we could make sure would be correct. we sort of disposed of saying health care upheld, because we thought it would be too much of a split decision. we went with individual mandate upheld or individual mandate struck, as an alert possibility. you think about these things that you never thought in a million years you would be thinking about. >> scotusblog is an extremely good work. lots of sources of information are good.
2:59 pm
i am delighted. >> unless anybody has >> unless anybody has something else to say about health care, maybe we should move onto other things. >> there is something else? >> was there something else? >> justice scalia did not have anything to say or early on thursday. he did come up last monday, at descent from the supreme court decision on the immigration case, sb 1050. there have been remarks about president obama's decision to exempt certain people from immigration enforcement action, something obama announced after the case had been argued. let me start with david. you started covering the court about when scalia arrived. was this normal? or is this a step beyond that? >> it is a lot of normal scalia. i thought for 25 years that all supreme court's ended with a rush of decision in late june and a fiery scalia dissent. there has been almost no year.
3:00 pm
almost every year, there is a really scalia lambast one side or the other. >> i can tell you when it started. the end of his first term, 1986 -- in 1987, nine minutes of him complaining about where the court had gone on the independent counsel statute. other memorable -- a gay rights case out of colorado. he has won just about every term. -- one just about every term. it is always vintage. it was interesting that he would go outside the record and complain about the order from the president on young people who were brought by their parents illegally and are undocumented. he got a lot of really negative press on it. a couple of people even
3:01 pm
suggested he should step down. frankly, i think he will still be doing what he does. >> i thought it was an early sign that things were going to go bad the rest of the week. usually, when he is on the warpath at the end of june, it is not just one decision. somebody has let him down in a big way. there has been a lot of debate over whether scalia's dissents have helped or hurt his cause. he is well known around it. you have here scalia. early in his term, early in his career, he wrote very few majority opinions. he has strong, clear views on the law. he had some zingers that people could remember. the downside is that you have the impression, i think, that he has alienated some of his colleagues over the years -- justice o'connor, justice kennedy.
3:02 pm
he really lambasting them. it will be interesting to see whether there is any lasting divide between him and john roberts. >> speaking of lambasting, justice alito's first oral dissent in 5.5 years in the previous week in the juvenile mandatory life without parole case. he orally dissented from justice geoghegan, the majority, sitting right next to him -- justice kagan, the majority, sitting right next to him on the bench. he was looking up most of the time. it looked like he was just reading from notes. he excoriated the court for, as he saw it, completely losing its anchors on the cruel and unusual punishment clause.
3:03 pm
was that a surprise, that he was so vigorous in dissent? out of all the cases, that pulled his chain so much. it affects a relatively small number of people. a few juveniles who now have life without parole will presumably get reese sentenced and can get life with the possibility of parole. it is an important decision, but did not seem like the kind that would set somebody off the way it's set him off. >> he is a former prosecutor. the point you made it is interesting. on something he has done is take an entire category of people from an official penalty. no juvenile can be sentenced to death, no matter what. the juvenile who committed a non-homicide crime can be sentenced to life without parole. all this recent decision said is you cannot automatically sentenced a juvenile to life
3:04 pm
without parole. you have to take account of their youth. that does not sound like an especially radical proposition, and would seem to be in line with what the justices do in sentencing since the beginning of time. they take account of the facts and circumstances. it was unusual for him to dissent orally. bob wrote about this nicely, i think. an interesting interplay between justice kagan, who announced the majority decision, and usually does that job with great cheer, and is a lot of fun to listen to, and here, she sounded very grim. you did not know why that should be, except she knew what was coming. alito late into her in a way that must have been unpleasant to hear. it was probably her first experience on the receiving end of an oral dissent. >> she has not learned the stoneface yet.
3:05 pm
she cannot look around the court like it does not bother her at all. >> check your blackberry. >> it seemed to bother her. with that case, it did not seem to be going all that far from what the chief justice decided in a previous case in which they said that everyone -- juveniles who did not commit murder should have a chance at parole at some point -- could not be sentenced to life without parole. the chief justice wrote at the time about how judges needed to have the ability to look at individual cases and make those kind of decisions. he was arguing against a blanket decision on that. it was a little surprising, i thought, in that way, that it got justice alito so worked up. >> justice alito was on the receiving end of one of those his first term. he wrote the 5-4 opinion in the lily ledbetter case.
3:06 pm
i think he viewed it as a matter of statutory construction. you have to file within 180 days. he wrote this opinion. i think he was unaware until that day that ruth ginsberg was coined to deliver on oral dissent. she really delivered a zinger at him and the court that suggested they were blind to the idea that women were being underpaid. they had no idea that the men were making a lot more. the court was, in effect, countenancing that, and congress needed to step in and change the law, which they did. i am told that alito found that a welcome to the supreme court. [laughter] >> another fight with an oral dissent, the plea bargaining cases back in march -- i was out of the country, so i did not see the decisions or press can't bridge -- press coverage at the time.
3:07 pm
it strikes me that maybe after health care of those might be the most important decisions of the term, in the sense of how much future litigation they will spawn and how many people they will affect, since plea bargaining is involved in 95 plus% of all criminal cases, federal and state. -- 95-plus percent of all criminal cases, federal and state. these see that as a case that will be important in the future? >> we played it really big. it may give rise to lots of litigation. i do not know, as a practical matter, and i think most people who do sentencing law will agree with this -- it is not going to get a lot of redo's. if you have to prove a lot of things like how your lawyer failed to deliver the fact that a plea offer had been made, and that other things would have
3:08 pm
happened down the chain of events. as far as i know, there has been one case so far where someone has gotten out on this ground. maybe it is a big deal, but i am not sure. it is a big deal symbolically, because it brings the constitution to a dark area of the law. the court is really focused on trials. only three to five criminal cases goes to trial. -- paul -- not many criminal cases go to trial compared to those that are sentence. the court interpreted a recent narrowness of the disparity in crack and cocaine sentencing. that will affect people. i do not know that the guilty plea case will. >> a surprising part of this
3:09 pm
term is that criminal defendants won most of the big criminal cases, which is not the norm. there was the case about gps, a drug dealer called jones, a nine-one reversal. they said the government cannot use a gps device without a search warrant to track everyone everywhere. there was the juvenile life without parole case we talked about. the plea bargaining case. and the one atom just mentioned, the crack cocaine sentencing case. in all those instances, the criminal defendant w. owen -- defendant won. there was a case where a lawyer abandoned a man on death row. there was a case in louisiana with hidden evidence. >> a. brady problem. >> another new orleans problem, where they hid evidence.
3:10 pm
it is always a surprise in a court like this, where the majority of the big criminal cases come out where the defendant and some of winning. >> you can search them though, right? >> the strips search case was not nothing. but in all these cases, kennedy was in the majority, often with the liberals. he does have a sense of -- i do not know how to characterize it exactly right. but his sense of fair play is offended when the criminal justice system imposes disproportionate penalties. >> talking about what comes most importantly after health care, you have to take account of the message that was so strong in the arizona immigration case. he wrote the opinion that sent a clear message to the states that this is a matter for the federal government and, regulating people within the borders illegally.
3:11 pm
i thought it was a pretty strong signal to places like arizona and other states that have followed up with soda ash called copycat laws. there is only so much you can do. they did let stand the one that could potentially lead to some racial profiling, the show me your documents 1. -- documents one. we do have to look again at immigration. given where they thought they would go, the majority decided in favor of the federal government. >> and the chief justice. >> sort of a warning that we will be watching to see how this plays out. >> that may be another instance of this jump-the-gun interpretation. everybody is focused on the "show me the documents" decision.
3:12 pm
but you need to read the opinion and understand how limited that holding was, and how broad the enforcement of federal power was in other parts of the decision, before you can write properly. >> this flew under the radar because it came out on the same day as the health-care decision, but the court continued its strong position on the first amendment, with the lying about military medals. that came out on the same day as the health care case, so a lot of people did not see it. the court has consistently said that despite how despicable the language is, americans have strong first amendment rights to say what they want to. they said it with the animal crush videos. they said it on american flag issues. the have said it is your first amendment right to lie about whether you have a military metal or not.
3:13 pm
you can see the trend pretty clearly from the court on the first amendment. it just happened to come out the same date as the health-care decision. so it slid under the radar for most people. >> that was heard in late february, the alvarez case on the stolen dollar issue. it took a while to iron out, just like it took a while to iron out the federal communications commission in decency, the fleeting expletives. they said there -- the first amendment cases are so different from the other issues. the often cut across the is ideological divide. clearly, it causes some problems as they are figuring out where to go. >> the thing i like about that case is it allows me to talk about my career as an n.b.a. all-star. [laughter] my various war medals and things i have done earlier in that career.
3:14 pm
>> the stolen valor case might have been even more satisfying if there had been a majority rationale. in fact, it was eight plurality which was a categorical, and two justices come up with a proportionality test that is very hard to make sense of. >> have there been any inside rumors, the way there have been in the health care act, about what caused justice kagan to split from what would have been a solid five-judge majority? >> i have no insight, but it is perfectly consistent. when she was a young professor at the university of chicago, she did a lot of first amendment work. it was nuanced to the point of on readability -- unreadability. it is consistent with his concurrence. >> what is different between
3:15 pm
"usa today" and reuters, and are you working on another book? >> do not make her talk about that. >> and is there any competition? >> the new book is not a biography in the vein of the o'connor and scalia books. this is more anatomy of nomination politics, looking at the social and political history that led to the appointment of sonia sotomayor in 2009. i track developments from the year of her birth, which was the era of brown versus the board of education and hernandez versus texas, when latinos became a protected class. it means of neatly with her life. it is mostly going to be a political book. i was working on it really intensely, getting a lot done. but my new job is a little
3:16 pm
harder to go home at night and work late on. it will probably come out in 2013. she is doing her own memoirs. >> there is competition. >> from the woman herself. but since mine is not a biography -- >> what is she now? >> she said hers will come out in early 2013. >> i hope it does, because i can modify what i need to modify. mine is more about the political history. a whole chapter, for example, about a man of people thought bill clinton might put on the court. there was a controversial nominee to the d.c. circuit under george w. bush. you can await that. reuters is a wire service, like a.p., but i am not quickly filing alerts the way jim of the knee -- jim matheny had
3:17 pm
done. i look at broader trends. i do not have to file every day, but it is the wire, so you have to fill a hole faster than you would for the newspaper. >> is anybody else working on a book they want to out? >> not yet. >> you did a biography of justice o'connor. are you still in touch with her? what is she up to? >> she is on an airplane. she is always traveling. i asked if she would be in the room for health care. she said, "i have so much planned." i asked her if she had an instant. she said, i have not even had time to read the statutes. do you know which way they are going? no clue. it turned out that she was in
3:18 pm
the courtroom the week before. all the speculation about when it will be handed down -- nobody knows until the writing on all sides is finished. she did not know exactly when it was going to come. she could have suspected, the way we did, that it would come on june 28. she was in the courtroom the week before. in many nervous when she showed up. but it was not for a big case. she was not even there for the arizona emigration case. she is still doing her sixth thing, out there all the time as a very active retired justice of the supreme court. >> i did a feature on her last fall, all the things she was doing. when i was interviewing ar, joan does such a good impression. i kept thinking, she sounds exactly like joan. >> i spent way too much time with her. >> i do not know if you guys could see from all the way across the court room, but
3:19 pm
justice stevens walked in and took a seat in the special guest area. he seems to be doing very well at 92, making speeches and giving opinions on cases. are the current nine active justices in as good shape as he is? are there any retirements likely to be seen in the next year or two, do you think, for health reasons or otherwise? >> one of the things i did before covering the supreme court and the warehouse is a covered south carolina and strom thurmond. i am pretty much used to them staying around forever. [laughter] >> the general view is the summer we know we are free to go on vacation is the summer of an election year. nobody willingly retires during an election year. before we all had up, i am sort of assuming nobody is leaving this year. nobody seems to be in bad health.
3:20 pm
after the next presidential election, the year after, people will start talking about retirements. fortunately, it is quiet on that front this year. >> the physical renovation of the courthouse has been going on five or six years now, and must be nearing completion. has that made a difference to the court? has that made a difference to the press? for a while, the public information office was in a trailer outside. i am sure it was a great improvement when that phase finished and you moved back into the building. >> i do not think it affects us. it's still bugs justice prior -- it still bugs justice breyer that you cannot walk up the steps and go up the front door. >> it does let you use the metaphor "closing the courthouse door." it is an imperfect metaphor. if you look at the court
3:21 pm
building now, they have to do repairman -- repair on the front from the earthquake. a lot of the front of the courthouse is now covered with these sheets. they said they are putting up a scrum that will resemble the front of the courthouse, so you can see a pretend supreme court while they fix the real one. >> the modernization that you asked about is completely done. the new work is a different project. closing the courthouse doors was declared by them, by the justices. it did not have anything to do with modernization. >> let us spend a few minutes on next term, before i open the floor to some questions. almost lost in last week's news was the third petition fired by paul clement asking them to book of the defense of marriage act case. he is representing the house of representatives.
3:22 pm
we are likely to see important voting rights act cases from the sea, and affirmative action case from texas, and perhaps the same-sex marriage case from california. any thoughts about what next term is looking like? >> the case we know they have taken is the affirmative action case out of texas, which might bring us full circle. we do have a court with five members who are very skeptical of race-conscious government action, including university of admissions policies. while that case has vehicle problems and comes from a place with an idiosyncratic admissions process, fisher against texas is a big deal. i think they will take the doumit case. they love giving paul clement an opportunity to get back to the lectern.
3:23 pm
if same-sex marriage people had to choose between whether a federal law has to track benefits in states where people are already lawfully married, not shovinmarriage down the throats of anybody, but merely making the federal law congruent to state law in an area where state law has traditionally governed, that is a simpler and easier question than the proposition a case would present. >> i agree with that. on affirmative action, the thing to watch is whether it will be a texas-only case or a national case. >> i would bet the white plaintiffs are going to win somehow in that case. otherwise, there would not have taken it. texas had a top-10 system. the top 10 graduates of high schools around the state were automatically admitted to austin. they had a good amount of
3:24 pm
diversity through that system. in addition to that, texas started using race as an emissions factor. the challenge is really to the extra use of race. the court could say as long as you have got diversity through this one system, you cannot go beyond to consider race. that would be essentially limited to texas. on the other hand, they could say more broadly that any use of race is unconstitutional, and we disavow what was said in the michigan case. that would be a big deal that would affect universities all around the country. >> it is interesting how different it is around the country. california has a constitutional amendment that disallows using race in college admissions. it is interesting that this case comes from texas. it seems if there was any
3:25 pm
legislature that would rule that you could not use race in university admissions, it would be the texas legislature. i do not know why that is the place for this case. but it makes it even more interesting, i think. >> a little side note, since this is a legal audience. texas had urged the court not to take the case. texas is a generally conservative state. it is a republican attorney general. they did not want the court to go further on restricting affirmative action on campus. after it was granted, texas hired a lawyer who used to be a solicitor general. in our group, the hiring of him upped the stakes in some way, in terms of what the representation would be. he has a very fine reputation. he won the naples case we talked about. it will be a well-fought case.
3:26 pm
in some ways, to have somebody with the conservative credibility of having been in the bush administration as solicitor general, and coming at this in a non-illogical way -- non-ideological way, will help texas. >> he did a good job in lawyering through a difficult case involving a christian legal society and a law school, and whether it could bar gay students from leadership positions. so i agree with john that having greg in the case makes it more interesting. >> let us open the floor to questions. i am going to give up my microphone. staff will stand with the microphone. come to it so you are able to be heard. >> i have a quick question.
3:27 pm
with regard to the health-care decision, not so much the health-care decision itself, but the medicaid part of the decision that was struck down, the reason i ask this is in my law practice, i deal a lot with severely disabled children. i have also announced that i will be running for governor of virginia as a democrat, at least in the primary. from a practical point of view, i do not seem most turning down the medicare expansion. maybe a state like virginia, if a republican is elected, i could see that happening, but i do not see the majority of governors turning down that expansion. what is your thought?
3:28 pm
>> had toured the mike -- head toward the mic with the next question. >> the federal government will pay for 100%. in principle, you might say, i do not want to expand, but you would have to explain to the public that i am turning down millions of dollars in federal funds to pay for health care for poor people, and our tax money is going to go to other states that are getting it. i would think as a practical matter, even if a lot of states did not like the expansion, that down there will say, ok, if you are paying 100%, we will take the money. >> some governors are saying it goes down to 90% later, and even the 10% is a budget buster. i think i read that florida has announced it will turn it down. >> south carolina as well. i think it is a decision that
3:29 pm
does not have to be made at this moment. it is easier to say right now, we are not going to do it, then it might be later. >> it is a great read state- blue state divide. i would think the blue states would say, be our guest, if that is what you want to do. >> if a couple of states opted out, maybe it would not have a big impact. but if it was a patch work around the nation, which into possibly seat and an enormous emigration of old, sick people into the states that adopted index and maybe the states that are losing all their old, sick people will say -- people who need medical care. >> all people already have it. but poor people -- we are talking families that make up to $25,000 a year.
3:30 pm
these are authentically poor people. those people could lose out. those poor people would be wise to move to a state where they would get medical care. >> it is hard to imagine that over the long run that a state is going to turn down that type of money permanently from the federal government. governors change. political parties shift. it is easy to say it right now, before you are getting any of the money, that we do not want it. it is hard to see, 10 years down the road, that a single state or two is going to say, you other 48, take our money. it is hard to see that. >> what i wonder more is whether a lot of people will decide to opt out of the insurance purchase and pay the tax penalty. you can save yourself thousands of dollars a year by making that choice.
3:31 pm
if you know, if i get sick, i can buy insurance, why not save that money and use it to have a better life in the meantime? >> the people might legitimately made that choice. the law allows it to happen. there are no civil penalties for it. but the thing is, what do you have? if you put the money into a health insurance policy, you have the health insurance. if you pay the tax, you have just given it up. it is a valid question, what people will do. >> if i were healthy and 30 years old and could have an extra $2,500 in my pocket to go to the movies, take a vacation, by an engagement ring for somebody, maybe i would rather have that, knowing that if i get sick next year, i can get insurance. >> you are not 30. >> i am not 30. i have insurance.
3:32 pm
>> in my mind, there is an inconsistency in justice scalia not looking and legislative history, but giving a lot of weight to original thinking. it would seem to me that you can do one or the other. i think if he would look at what somebody from south carolina felt about the constitution in the 1700's, it would be different than what somebody felt in new york. i was wondering if anyone on the panel could reconcile, to my mind, that inconsistency. >> we have been to have escalated expert here. >> i should defer. -- a scalia expert here. >> i should defer.
3:33 pm
he goes back to the real deal. he goes back to the framers and what they said and wrote in the context of that era. he speaks on legislative history. it is not as contextual as the 18th-century information that you look at. it was not what was passed into law. all of the speeches you give on the floor, all of the artifacts of legislative history, they are not what get signed into law. the bill gets signed into law. he will look at the bill. the majority of the supreme court does have a high regard for legislative history. >> i think the two things are perfectly reconcilable. he wants to know what the words meant. he also does not care what the intention of the framers were. he wants to know what the original public understanding at the time were. that is not very different from reading the plaintext of the statute. >> next. >> i have a question about the affirmative action case that is coming up. i want to hear a little bit
3:34 pm
about it. i heard potentially that the decision, justice roberts's position, he was potentially line himself up to strike down affirmative action. do you have any thoughts about which way justices might go? i would be curious to any insights you might have. >> i think justice roberts has made it clear that he has little use of affirmative action type programs. remember that he wrote the decision in the seattle cases in which race was used as a way to balance out school populations. he was quite critical of that. he was held back from saying that schools could not use race at all by justice kennedy who was not ready to go that far. he came up with a sort of different test that could be used in this situation, but not that situation.
3:35 pm
it seems pretty clear that there are at least four very strong votes and then justice kennedy. >> we have four does this is going to court in recent years. almost none of that matters in vote switches. they were pretty much one for one. one that matters was alito. the same group of five now tilts the other way. there is some reason to think that the affirmative action regime may go down. >> next. >> this is the fifth anniversary of a certain car. i happen to work on that particular opinion. one of the things that struck me
3:36 pm
recently in looking at cases regarding representation was the opinion of justice scalia. it is not traditionally a usable basis for opposing or drafting legislation, much less a judge in debt as a justice. i think justice warrant is turning in his grave at that notion. he got fairness was appropriate. i wonder what thoughts you have about whether this achieve anything. i wonder if it has been lost -- the and effectiveness. there is a judicial standard which legislative districts could be formed.
3:37 pm
the other aspect is that it seems to be that brown versus board has also been put in the ashcan. there was a recent new york times article that indicated that racial segregation and the public schools of america is now even greater than it was in 1954 from the looks of the nation as a whole. especially the urban schools. >> it is very hard to measure, the impact. i would guess that the 50 years since then, legislatures all around the country are more fairly -- it had a very broad impact around the country. it says the district should represent the people. the people that live in the cities, they should be
3:38 pm
represented in the cities and suburbs and not some other representative in a rural district. >> that appears to be the answer. next question. >> hello. with the specific fall out from the narrow interpretation -- where they think that will come out? >> that is a good question for one of my colleagues.
3:39 pm
[laughter] my sense is that the commerce clause holding -- and there is a lot of controversy whether the five votes amount to a holding and if it has any teeth. there is reason to say no. the decision itself is about the that it was novel. you would also think that those same congress would use the vehicle of this kind of mandates to be the sole justification for any law in the future. it may be that this great ruling applies to an old set. >> i think that might be right, too. the solicitor general -- the court a very much wanted him to give some living principle in the commerce clause. anything he came up with is that health care is different from everything else and health insurance is different from
3:40 pm
anything. there really is no other law like this. they was not particularly satisfied with his answer. that was the government prosecute. there is nothing else like this out there. >> on the spending cost side, i bet there will be a ton of litigation about what conditions are ok and not. that had seven votes behind it. that opens up whole new field of constitutional law. >> it is interesting the criticism i have seen so far. it has come from the republican side. i thought there would be a lot of optimism on the liberal side. the federal government has twisted the arms of the states to do things that the aclu does not like, for example. reducing the speed limit to 55. having every state have a megan's list.
3:41 pm
it is a long list of things the federal government twists the states' arms to do. >> justice breyer and justice kagen joined that holding. it was a surprise. i thought it was a matter of how the law was supposed to work. i thought the notion was in the spending clause that we will give the state a certain amount of money for something, and if you take the money, you have to follow the rules. you do not have to take the money. i thought justice roberts was
3:42 pm
restating the basic principle. it has to be a deal that the states can say no to. the thing that came up in the oral argument, there is a hypothetical argument of, your money or your life. you do not have to pull the trigger. just holding the gun is the threat. arkansas can say, we are reluctant to do this medicaid expansion. it seemed to be the law was written. they can turn around and say, ok arkansas, you could lose millions of dollars if you do not go along with it. i think they have restored the principle that there has to be a deal that the state can either choose to opt in and take the money and accept the rules or turn it down. >> i am pretty curious about the case the supreme court heard in february, i think it was. it went from being whether corporations can be held liable under the statute and now it is a matter whether he meant rights occurring in other countries could beat handled in the united states. i am curious about where you think the decision will go.
3:43 pm
>> to give you a touch more background, there is a law. it is very ambiguous. it seems to allow some kind of lawsuits for human rights abuses. some courts have said, including for human rights abuses committed by foreigners abroad against other foreigners. the case gets to the court on the very narrow question of, can you sue a corporation? can use to a corporation for being accomplices in human rights abuses abroad? when a case was argued, some of the justices said, wait a second. why are we talking about corporations? why is a u.s. court and telling the case that happened abroad? they're asking the larger question of whether the statute should have application. where is it heading?
3:44 pm
it seems that some people are interested in the larger question. the answer may become no. >> my question is about that improper reporting that was done early on in the health care case. law students learn early on you need to read the whole decision before you can decide what the case is about. lawyers know that well. i am wondering within the press corps, will there be some new rules or standards that are adopted by some media organizations to try to prevent what happened from happening again? >> i will do reports of the court steps. [laughter] >> there has been a lot of talk of going forward and how to make sure that does not happen again.
3:45 pm
>> atop the occasional law school class. -- i taught the occasional law school class. anytime i tried to have them read the whole opinion, they would go out of their minds. [laughter] >> they should know what we are talking about beforehand. this was a very difficult, complex decision to be able to read in a couple of minutes and digest. honestly, if you were sitting in the courtroom, you have to wait a long time to figure out what happened. those of us downstairs, we were able to flip through the decision fast and find the key words. but if you did not read the entire section, it is easy to see how that miss a could be made when you are trying to do this. >> i would give a shout out to our colleague. i asked him how he would handle this.
3:46 pm
will the house of out there are run the opinion to him? he said that he would get it himself and read it on the way. that worked well for him. he is a very smart and careful guy. >> he said the hardest part was not reading the opinion, but getting through the crowd to the stand. [laughter] >> pete is terrific. there were not many tv networks when i was there. pete was in the best position to report this. he knows the court. he knew the case while. i feel bad for the people who are out there. they have got themselves in a bad situation of trying to say, we will be on the air live and report this instantly, when they did not even have a chance
3:47 pm
to read the syllabus. someone is calling out to them and saying -- someone higher up in it the organization said say, let's not try to beat everyone to report this. it will take a few minutes to read the decision. then let's go out and report it. let's not get on the air live and try to beat everyone. >> the only part i would disagree with is that -- be our competition. that is what we do. but what of the things of the drill is first, get it right. there is no way you are going to read one bit of a supreme court opinion and get it right. you still want to be first, but you know you have to read before you can commit anything to paper -- i guess now, computer.
3:48 pm
>> for the historical record, does anyone know who was first with the correct headline? >> i can say that "the associated press" is handed out at 10:07. there may be some arguments about seconds. 10:07 at what? but i can say we were not the first. >> [inaudible] [laughter] >> i do think my colleagues came really close. >> i do know this much -- "the associated press," "rueter," and bloomberg were there. >> i think that bloomberg had it first.
3:49 pm
[laughter] >> on that note, i am sure c- span wants to keep to its schedule. thank you for coming. please come again next year. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] fffled fifth suddenly became fond of radar 5/8
3:50 pm
i started taking of the 15th and expanded on them until the kickoff to the point where my footer fall of worth in my newsroom if a deaf rattled an anchor with an ear piece of someone giving me the latest information, i was sitting on a park bench with my own having dozens of all lawyers doing all things for me so i could do coverage of these revolutions and fact checking. >> you can see that discussion on how social media is changing the way media covers the news tonight at 8:00 p.m. eastern here on c-span. on monday, an adviser to the mitt romney campaign said the former governor is committed to repealing the 2012010 health cae
3:51 pm
law. saying the governor's plan would remove special tax status for employers who pay for insurance and make big changes to the current medicare program. he spoke at a discussion on the future of health care hosted by the cato institute. this is about an hour and a half. >> you are going to see a great panel today. we now know that obamacare is now constitutional. we also know that nothing about
3:52 pm
it has changed. this is still a health care bill under which you can not necessarily keep your current insurance even if you are happy with it that will cause new spending. it is a health care law that put in place structures that down the road will lead to the rationing of care. it is a law under which we could and about -- there is a lot of reason to worry about the policy going forward, what should be done about this and what can be done about it. people talk about repealed and replaced. why should be repealed? we have a panel today that is going to be talking a lot about that same veifirst.
3:53 pm
first up is grace turner who has been working on health care since hillarycare days when she created something called the consensus group which was a wide range of think tanks ranging from left to right across the political spectrum that came out with some ideas of market-based health care reform. then she went on to find an institute that she is head of now and is probably one of the premier organizations promoting market-based health care reform. she is tied into everyone and everything in washington paying bank she is certainly someone who knows what is going on in this town. i will be happy to turn it over to you. [applause] >> thank you, michael. thank you for all that you and
3:54 pm
cato do to keep the conversation going about free- market ideas and health care reform and for your diligence on these issues. nancy pelosi said that we have to pass the bill to find out what is in it. now we all have to find out what is in its. i think a lot of us really believed that we would be rescued from this law by the supreme court. now we all have to find out what is in it. i think we thought we had to be rescued by the supreme court, strike it down, we do not have to learn what is in it. now, we have to learn what is in it and the president heads to spend the next four months of defending a law he has basically stopped talking about it. every time he talked about it, his poll numbers went down, so he stopped talking about it. now, he has to defend the law, and it has a sign around its neck calling it a tax.
3:55 pm
if they say it is not a tax, they are in validating the supreme court's justification. it is also important to recognize the supreme court did not uphold obama-care. two specific issues were under question -- the individual mandate and the medicaid expansion. if either one of them had been stricken, then the entire law could have come down, but there are many other challenges to many other provisions that are making their way through the courts. we will talk about those in a minute. instead of upholding obama-care, the accord reached a very narrow decision.
3:56 pm
the individual mandate is a valid as a tax, chief roberts said, and otherwise free citizens will be required to spend personnel, after-tax money to purchase a private product or a a tax. the states can now tell the federal government -- the federal government can tell the states to dramatically expand the medicare program, but there is no consequence if they do not. we need to be ready for the debate. seven in 10 americans wanted the supreme court to take down all or part of a lock. since it did not do that, we must be armed with the fact to help people understand what is in the law. over the next several months
3:57 pm
the president will talk almost exclusively about 26 year olds on their parents' policy, pre- existing conditions, and the refund extracted from insurance

112 Views

info Stream Only

Uploaded by TV Archive on